Complainant alleges that he applied "for a
job as a civil/structural/pipe support engineer" with Respondent. The Complaint does not
allege any dates that he applied to Respondent, only that he "applied many times." He
filed this Complaint with the Secretary of Labor alleging discrimination and retaliation based on
Respondent's failure to hire him on November 15, 1999.
The complaint was investigated and found to have no merit by the Secretary of
Labor on December 15, 1999. Complainant filed objections and requested a hearing before an
Administrative Law Judge on December 21, 2000. The case was referred to the Office of
Administrative Law Judges on January 24, 2000.
[Page 2]
Applicable Law
Any employer who "intimidates, threatens, restrains, coerces, blacklists,
discharges, or in any other manner discriminates against any employee because the employee has: (1)
Commenced or caused to be commenced...a proceeding under on of the Federal statutes listed in
§ 24.1(a)..." is deemed to have violated the federal law and regulations in Part 24. 29
C.F.R. §24.2(b).
Neither 29 C.F.R. Part 24 (whistle blower proceedings) nor 29 C.F.R. Part 18
(procedures for administrative law judge hearings) address dismissal for failure to state a claim;
therefore, the standards set out in the Federal Rules of Civil Procedure are applicable. Glenn v.
Lockheed , 1998 ERA 35 and 50 ( ALJ July 15, 1999). Under Federal Rule of Civil Procedure
12(b)(6), dismissal may be appropriate when the facts in the case fail to state a claim. Id. In
considering whether a dismissal is appropriate, the facts alleged in the complaint are taken as true,
and all reasonable inferences are made in favor of the non-moving party. If the factual allegations,
after having been accepted as true and construed most favorably on behalf of the non-moving party,
present a cognizable claim if proved by a preponderance of the evidence, dismissal is not proper.
Jones v. City of Lakeland, Tennessee , 175 F.3d 410 (6th Cir. (Tenn.) 1999). However,
failure to allege a prima facie case is grounds for immediate dismissal. See Lovermi v.
Bell South Mobility, Inc. , 962 F. Supp. 136, 139 (S.D. Fla. 1997); Briggs v. Sterner ,
529 F. Supp. 1155, 1164 (S.D. Iowa 1981).
Elements and Burden of Proof
Complainant has the initial burden of proof in an environmental whistle blower
proceeding to make a prima facie case which shows that: (1) complainant engaged in a protected
activity; (2) complainant was subjected to adverse action; (3) respondent was aware of the protected
activity when it took the adverse action; and, (4) the evidence is sufficient to raise a reasonable
inference that the protected activity was the likely reason for the adverse action. Glenn ,
1998 ERA at 7. If Complainant has succeeded in establishing the foregoing, Respondent must
produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Frady v.
Tennessee Valley Authority , 92-ERA-19 (Sec'y Oct. 23, 1995) The complainant bears the
ultimate burden of persuasion that Respondent's reasons are not the true reasons for the adverse
action, but a pretext for discrimination. Id . At all times, Complainant bears the burden of
establishing by a preponderance of the evidence that the adverse action was in retaliation for the
protected activity. Id .
Complainant alleges that he engaged in a protected activity by his reporting of
safety concerns to the United States Nuclear Regulatory Commission. Complainant has established
the first element required to establish a prima facie case of retaliation.
[Page 3]
The second requirement for a prima facie case of retaliation requires adverse
action on the part of the Respondent. When determining whether a complainant has established an
actionable adverse action in a failure to hire case, the framework of a prima facie case outlined in
McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973) applies. Webb v.
Carolina Power & Light Co. , 93 ERA 42, 12 (ALJ July 24, 1996) (aff'd , ARB August
26, 1997). In order to establish a prima facie case of discriminatory refusal to hire, the complainant
must show: (1) that he applied and was qualified for a job for which the employer was seeking
applicants; (2) that, despite his qualifications, he was rejected; and (3) that, after his rejection, the
position remained open and that employer continued to seek applicants from persons of complainant's
qualifications. Id.
In neither his complaint, nor in any of his responses, does Complainant allege
that he mailed his resume in response to any job opening. In fact, in his "Response to
Respondent's Motions to Dismiss," Complainant alleges only that his resume has been with
Respondents for years and he did not get a job based on his whistle blowing activities. This does not
meet the first element, that he applied and was qualified for a job for which employer was seeking
applicants. Although Complainant alleges the second element, that he was not (re)hired by
Respondent, this element is dependent upon the first; an application for a job for which the employer
was seeking applicants. Thus, Complainant has not established the second element. Similarly,
Complainant does not allege the third element, that the position remained open, because Complainant
has not established that a position was open in the first place. As such, Complainant has not alleged a
prima facie case of adverse action on the part of Respondent and has failed to meet the second
requirement.
In satisfaction of the third requirement, Complainant must show that
Respondent was aware of the protected activity when it took the adverse action. Since Complainant
has not met the requirements to establish adverse action, he has failed to allege the third requirement
for a prima facie case of retaliation.
The fourth requirement to allege a prima facie case of retaliation by
Complainant is that there is sufficient evidence to raise a reasonable inference that the protected
activity was the likely reason for the adverse action. Because Complainant has not alleged a prima
facie case of adverse action, he has not met this requirement.
After a careful review of the record, Complainant has failed to set forth a prima
facie case of proscribed behavior, or provide a full statement of the acts and omissions, with pertinent
dates, which are believed to constitute a violation. 29 C.F.R. § 24.5(a)(2). In addition,
Complainant's Complaint, as pled, fails to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6).
[Page 4]
B. Discovery
In his Response to Show Cause Order, Complainant argues that dismissal is
improper because he has not obtained discovery in this case. As Complainant has failed to establish
even a prima facie case, his discovery requests would become nothing more than fishing expeditions.
In the absence of a prima facie showing, a court has the discretion to dismiss a claim. See
generally McLaughlin v. McPhail , 707 F.2d 800, 807 (4th Cir. 1983). Therefore, I find
that Complainant's argument that dismissal is improper in the absence of discovery is without merit.
Accordingly,
ORDER
It is ORDERED that the Complaint of Syed M A. Hasan be, and is hereby,
dismissed.
ROBERT J. LESNICK
Administrative Law Judge
RJL/lab
NOTICE: This Recommended Decision and Order will automatically become the final
order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed
with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances
Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review
must be received by the Administrative Review Board within ten business days of the date of this
Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative
Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614
(1998).
[ENDNOTES]
1 Specifically, Complainant filed safety
concerns against a contractor providing services to Commonwealth Edison.